State v. Pyle
| Decision Date | 25 June 1929 |
| Docket Number | 6924. [*] |
| Citation | 226 N.W. 280,55 S.D. 269 |
| Parties | STATE ex rel. WEGNER v. PYLE, Secretary of State. |
| Court | South Dakota Supreme Court |
Original proceeding in mandamus by the State, on the relation of Henry J. Wegner, to compel Gladys Pyle, as Secretary of State, to submit certain law to vote of electors under referendum clause. Peremptory writ granted.
Martens & Goldsmith, of Pierre, for plaintiff.
M. Q Sharpe, Atty. Gen., and E. D. Roberts and R. F. Drewry, Asst Attys. Gen., for defendant.
This is an original proceeding in mandamus to compel the secretary of state to file a petition and take such steps as are necessary to submit chapter 246, Laws 1929, to a vote of the electors under the referendum laws of this state. The petition was presented in time, was in due form, and in all respects sufficient to invoke the referendum, if the law sought to be referred is subject to the referendum provisions of our Constitution. On advice of the Attorney General, respondent rejected the petition on the ground that the law was not subject to the referendum.
The law is designed to shift a portion of the general property tax for use of the general fund to purchasers of automobiles. The details of the law are not important in a discussion of the issues presented. In a general way, it requires a purchaser of an automobile for which certificate of title has not heretofore been issued in this state to pay 3 per cent. of the value of the automobile as a tax for use of the general fund of the state, when application is made for registration and certificate of title under chapter 225, Laws 1925, and amendments thereto. The value, according to the age of the car, is based upon all or a percentage of the retail list price fixed by the manufacturers. Section 5 of the act provides that the levy against real and personal property shall be reduced in proportion to the amount of tax collected under this law, making it clear that the Legislature did not intend to raise more revenue, but to raise it from another source. Conceding that this section is not important as argued by respondent, and that the result would be the same without section 5, since the general property levy is based on the amount of revenue to be raised exclusive of that to be raised by special tax measures, it is mentioned because it is an express declaration of legislative intent which unmistakably discloses the purpose of the law and the reason for its enactment.
The sole question for our determination is the right of the petitioners to refer the law to a vote of the electors. Section 1, art. 3, of our state Constitution, was amended in 1898, and what is known as the initative and referendum was inserted. That portion of the section pertinent to this inquiry reads:
"The legislative power of the state shall be vested in a legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themslves the right to propose measures, which measures the legislature shall enact and submit to a vote of the electors of the state, and also the right to require that any laws which the legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions."
Is the law in question one which the people reserved the right to refer to a vote of the electors, or is it in that excepted class committed wholly to the legislative power of the Legislature? To answer this correctly, we must bear in mind that under our system of government the powers of government are derived from the people. The Legislature has only such power as is granted to it under the Constitution. Because prior to the amendment the Constitution granted to the Legislature the legislative power of the state without reservations, respondent argues that the reservations in the amendment are to be regarded as exceptions to be strictly construed. With this we cannot agree. The power conferred upon the Legislature is a grant of power limited and defined by the terms of the grant. The language grants the legislative power of the state to the Legislature, "except that the people expressly reserve to themselves the right *** to require that any laws which the legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect." This language is plain, and leaves no room for construction either strict or liberal, and, if it stood alone, the question presented in this case could not arise. The power granted to the Legislature is restricted and limited by the right of the people to ultimately adopt or reject any legislative enactment.
But the framers of the Constitution and the people who adopted it evidently saw that, if we are to have a stable and efficient government, some laws may be needed to meet emergencies and to control and govern the daily operations of the government that should go into effect immediately or sooner than would be possible, if suspended pending the taking of a vote by the electorate, so, after the words last above quoted, the following was inserted: "Except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions."
This exception constitutes an additional grant of power to the Legislature, and, if any part of the grant is to be strictly construed, it is this exception. There is nothing in the Constitution or in the events surrounding its adoption that indicates the advocates of the initiative and referendum or the people who adopted it had any doubt of the wisdom of this form of direct legislation or had any desire to curb or confine the popular will. Any fair-minded student of political history must concede that the people conferred upon the legislative body more unrestricted legislative power in the excepted field of legislation, not because of any fear that the people themselves were not capable of wisely legislating therein, but because in those particular fields there might be a practical need for more speedy completed legislative action on some occasions than the body of the electors would be able to provide. That this is true is quite convincingly evidenced by the language of the amendment. The Legislature is not given exclusive power in the excepted field. Its power is only concurrent with the power of the people to initiate a law on any subject. The exception applies only to the referendum and the initiative is as applicable in this field as anywhere. On this premise we proceed to consider the question presented. If chapter 246, Laws 1929, falls within an excepted class over which the Legislature has unreserved power to legislate, then this action must be dismissed, otherwise a writ must issue.
The Attorney General appearing for respondent argues that the history of the adoption of the initiative and referendum and the campaign speeches disclose that it was intended to relieve the people from monopolistic class laws, and to combat and control trusts and monopolies. And that the reason for excepting from the operation of the referendum "such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions was, 'first because these two large classes of laws had nothing to do with the combat and control of monopolies and trusts; second, the innovation would scarcely have been adopted without such a restriction on the operation of the amendment as would assure that the wheels of the state and its existing institutions would be kept turning and the public peace, health and safety not be wholly left to the mercy of deferred political campaigns; third, the people could not know the financial needs of the state to be supported by tax levies and tax laws nor the revenues available for appropriation."' We think the second reason mentioned by respondent is the best and probably the only reason for excepting such laws from the operation of the referendum, otherwise why leave them to the initiative?
But we do not think it necessary to go far into the history of this legislation. The constitutional provision is quite plain in its language, which must be construed according to its import where there is no ambiguity. Though it may have been an experiment in government and the product of extremists in turbulent times, it cannot be ignored. The fact that more conservative men are unable to suggest a construction in accord with their views of conservative government is evidence that its language is not ambiguous. Twice since its adoption in 1898 its amendment has been sought and twice rejected, once in 1914 and once in 1922. The last time, when the amendment proposed was to raise the number of petitioners required to invoke the referendum from 5 per cent. to 15 per cent. of the electors, the vote against the amendment was nearly two against to one in favor of the change, thus indicating its popular approval after 24 years of operation.
This court has never heretofore been called upon to fix the limits of the excepted classes, but in two cases some reference has been made thereto. In State ex rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707, L. R. A. 1917B, 1, the question of the right of the Legislature to repeal a primary election law adopted by the people and to substitute another primary election law with an emergency clause was considered. In the course of the discussion in that case this court said:
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